Beruflich Dokumente
Kultur Dokumente
STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1721
vs.
Lisa M. Elliott, Elliott Law Offices, P.A., Minneapolis, Minnesota (for respondent David
Victor Rucki)
Considered and decided by Smith, Tracy M., Presiding Judge; Larkin, Judge; and
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
UNPUBLISHED OPINION
respondents David Victor Rucki and Dakota County, appellant challenges (1) a child-
Rucki’s driver’s license, which had been suspended for failure to pay child support.
Because her arguments are time-barred or fail to demonstrate a reversible error, we affirm.
FACTS
As described below, Grazzini-Rucki challenges three orders, filed in May, July, and
August 2018. We begin, however, with an October 2016 order, which sets the stage for the
later, challenged orders. On October 13, 2016, Grazzini-Rucki was ordered to pay Rucki
$975 per month for child support. At that time, Grazzini-Rucki had been convicted of, and
was awaiting sentencing for, deprivation of parental rights. Therefore, the order provided
that Grazzini-Rucki’s support obligation would be suspended until she was released from
incarceration, whereupon a review hearing would be held to decide whether the support
May order
Grazzini-Rucki was released from her incarceration related to that offense, and, in
2018, Rucki requested a review hearing and reinstatement of the child-support obligation.
A CSM held the review hearing on May 3, 2018; Grazzini-Rucki did not appear or
participate because she was again incarcerated from March 27 to May 15, 2018, in
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connection with an unspecified matter. The CSM filed an order on May 7, 2018 (the May
October 13, 2016, order would be reinstated effective June 1, 2018. Grazzini-Rucki neither
requested district court review of the May order nor appealed from it; instead, on May 31,
2018, Grazzini-Rucki filed a motion to modify the May order. Along with the modification
motion, she also filed a motion to reinstate her driver’s license, which had been suspended
July order
but addressing procedural issues. After confirming that Grazzini-Rucki was appearing pro
se, the CSM gave Grazzini-Rucki detailed instructions on the information that Grazzini-
Rucki was expected to produce before the hearing on her motions. The CSM reiterated the
instructions in a written order filed July 19, 2018 (the July order). Specifically, Grazzini-
Rucki was ordered (1) “to provide verification of her income from any and all sources,”
(2) “to provide verification of any disability that she is claiming as a reason why she is
unemployed,” and (3) “to provide information on all applications for employment she has
made from January 1, 2018 to date.” Rucki was likewise directed to provide his income
information.
August order
The hearing on the merits of Grazzini-Rucki’s motions was held before the second
CSM on August 7, 2018. Grazzini-Rucki did not comply with any of the directions from
the July order. Rucki also did not submit any current financial information, saying that he
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was consciously making the choice not to do so because of Grazzini-Rucki’s past practice
of disseminating his financial information; instead, he claimed that his income was at the
same level as in 2016. The CSM filed an order on August 21, 2018 (the August order). In
it, the CSM imputed income to both parties—the CSM found Grazzini-Rucki to have the
ability to work full-time at minimum wage and, drawing an adverse inference from Rucki’s
refusal to supply information, found Rucki’s income to be double the amount that he
Rucki to pay the minimum support obligation of $50 per month for the period of June 1,
2018, through September 2018, and $215 per month as ongoing basic support effective
October 1, 2018. Also, the CSM reinstated Grazzini-Rucki’s driver’s license and
established the August order as the “payment agreement” required by statute when ordering
DECISION
Grazzini-Rucki challenges various aspects of the May order. But, as the county
correctly points out, appeal from the May order is time-barred. The time to appeal an
appealable order is 60 days from service by a party of written notice of the filing of the
order. Minn. R. Civ. App. P. 104.01, subd. 1. The record contains an affidavit of service
for the notice of filing of the May order. Service on all counsel of record was perfected
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See Minn. Stat. § 518A.65(e)(2) (2018), discussed infra in section II.
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through the electronic filing system on May 9, 2018. Grazzini-Rucki does not challenge
that service. Grazzini-Rucki could have appealed the May order within 60 days, or she
could have timely filed a motion for review and stopped the running of the 60-day time for
appeal while the motion was pending. Minn. R. Civ. App. P. 104.01, subd. 2. But Grazzini-
Rucki did not employ any of those procedural devices; instead, she filed a new motion to
modify her child support obligation on May 31, 2018, and did not appeal the May order
until October 2018. A motion to modify support does not extend the time for appeal of the
order sought to be modified. See id. (listing motions that extend the time for appeal); Minn.
R. Civ. App. P. 104.01 1998 advisory comm. cmt. (stating that motions to modify “no
longer extend the time in which to appeal”). Grazzini-Rucki’s challenge of the May order
Moreover, even if an error in the May order were timely, the asserted error is
Greenwood, 748 N.W.2d 279, 285 (Minn. 2008) (citing this aspect of Minn. R. Civ. P. 61).
On Grazzini-Rucki’s motion to modify the May order, the CSM issued the new order in
August 2018. The August order overrode the May order, and the two orders have the same
effective date—June 1, 2018. Therefore, any challenge to the May order is moot, and any
error harmless.
II. The CSM did not reversibly err in reinstating Grazzini-Rucki’s driver’s license
and establishing the payment agreement.
In the August order, the CSM established a driver’s license payment agreement.
Under the agreement, Grazzini-Rucki’s driver’s license was immediately reinstated and
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Grazzini-Rucki was held to “complete and timely payment of support” beginning
October 1, 2018. Grazzini-Rucki argues that the CSM should have reinstated her driver’s
Grazzini-Rucki argues that, in reinstating her driver’s license, the CSM should not
have held her to the obligations of the August order because the order was not a payment
agreement that she agreed to. On “a motion for reinstatement of the driver’s license”
brought by a child-support obligor, “if the . . . child support magistrate orders reinstatement
of the driver’s license, the . . . child support magistrate must establish a written payment
added); see Minn. Stat. § 645.44, subd. 15a (2018) (“‘Must’ is mandatory.”); Greene v.
Comm’r of Human Servs., 755 N.W.2d 713, 721 (Minn. 2008) (citing this definition). The
CSM acted in accordance with section 518A.65(e)(2) by imposing the payment agreement
Grazzini-Rucki argues that the August order could not be a “payment agreement”
because she did not agree to its terms. Even if the statute required Grazzini-Rucki’s consent
to a payment agreement and the CSM erred by not securing it, the error is harmless. Had
the CSM not established the payment agreement, Grazzini-Rucki’s reinstatement motion
would have been denied and her license would have remained suspended. See Minn. Stat.
pay any of the arrearages that led to the suspension; it only requires her to make complete
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and timely payment of child support as set out in the August order. With or without a
obligor’s driver’s license. See Minn. Stat. § 518A.65(a) (2018). Grazzini-Rucki has not
shown how she was prejudiced by the imposition of the August order as a payment
B. Notice
Grazzini-Rucki also argues that the underlying suspension of her driver’s license,
which occurred in 2015, was illegal because it violated her due-process rights. Minn. Stat.
Before the public authority can direct suspension of the obligor’s driver’s license, however,
“the public authority must mail a written notice to the obligor at the obligor’s last known
address, that it intends to seek suspension of the obligor’s driver’s license and that the
obligor must request a hearing within 30 days in order to contest the suspension.” Minn.
Stat. § 518A.65(c) (2018); cf. Jaeger v. Palladium Holdings, LLC, 884 N.W.2d 601, 606
(Minn. 2016) (“Procedural due process . . . requires any notice to be reasonably calculated
to apprise interested parties of the pendency of the action before depriving them of life,
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Grazzini-Rucki’s due-process argument is that the child-support office did not send
her a written notice prior to the suspension. “Factual disputes regarding the adequacy of
notice are reviewed for clear error, while the legal adequacy of any notice that may have
been given is reviewed de novo.” Cook v. Arimitsu, 907 N.W.2d 233, 240 (Minn. App.
2018), review denied (Minn. Apr. 17, 2018). “When determining whether [factual] findings
are clearly erroneous, the appellate court views the record in the light most favorable to the
[district] court’s findings,” Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App.
2000), and reverses only if it “is left with the definite and firm conviction that a mistake
The CSM did not make a finding whether the child-support office had in fact sent
Grazzini-Rucki a notice prior to the suspension. But the only reasonable determination that
the CSM could make on this record is that the requisite notice was in fact provided. A
child-support officer stated in an affidavit that, on May 16, 2015, “the Dakota County Child
A copy of the notice was attached to the affidavit, which shows that the notice was sent to
the office of the person who was Grazzini-Rucki’s attorney at the time. Also, Grazzini-
Rucki used the attorney’s office as her own mailing address. Based on this record, the
Grazzini-Rucki’s argument, the fact that the notice was not docketed in the court file is of
no import. Nothing in the statute, or the due-process jurisprudence, required the child-
support office to file the notice with the district court. See Minn. Stat. § 518A.65 (2018).
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This record shows that Grazzini-Rucki was adequately notified of the suspension of her
driver’s license, and, therefore, that the suspension did not violate her due-process rights.
C. Ability to pay
Third, Grazzini-Rucki argues that the CSM abused her discretion by establishing
the payment agreement because Grazzini-Rucki does not have the ability to pay according
to the agreement. Minn. Stat. § 518A.69 (2018) provides that the “child support magistrate
. . . shall consider the individual financial circumstances of each obligor in evaluating the
obligor’s ability to pay any proposed payment agreement and shall propose a reasonable
Here, the CSM, in establishing the payment agreement, did not seek to hold Grazzini-Rucki
accountable for any of the arrearages that resulted in the suspension in 2015. All that is
required from Grazzini-Rucki under the agreement is to comply with her new child-support
obligation. Therefore, whether the payment agreement complies with Minn. Stat.
August order. As discussed below, the record supports the CSM’s determination that
Grazzini-Rucki has the ability to pay the child support. The CSM did not make a reversible
III. The CSM did not abuse her discretion in modifying the May order.
Grazzini-Rucki did not seek the district court’s review of the orders that she is now
appealing. On appeal from a child support magistrate’s order that has not been reviewed
by the district court, this court uses the same standard to review issues as would be applied
if the order had been issued by a district court. Hesse v. Hesse, 778 N.W.2d 98, 102 (Minn.
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App. 2009). Whether to modify child support is within the broad discretion of the district
court. Shearer v. Shearer, 891 N.W.2d 72, 77 (Minn. App. 2017); see Haefele v. Haefele,
837 N.W.2d 703, 708 (Minn. 2013) (stating that, generally, appellate courts “review orders
modifying child support for abuse of discretion”). A district court abuses its discretion if
its decision is based on a misapplication of the law, is contrary to the facts, or is contrary
Throughout her brief, Grazzini-Rucki argues that she does not have the ability to
pay the child support ordered. See Minn. Stat. § 518A.42, subd. 1(a) (2018). (“It is a
rebuttable presumption that a child support order should not exceed the obligor’s ability to
1. Imputation of income
Grazzini-Rucki first argues that the CSM should not have imputed to her any
The CSM found that Grazzini-Rucki was voluntarily unemployed because Grazzini-Rucki
failed to provide any verification of the reasons why she was unemployed despite the
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It is undisputed that Grazzini-Rucki is unemployed, and “[w]hether a parent is
voluntarily unemployed is a finding of fact, which we review for clear error.” Welsh v.
Welsh, 775 N.W.2d 364, 370 (Minn. App. 2009). Grazzini-Rucki argued to the CSM that
she is not employable because of her six felony convictions and because she was homeless
and lacked a means of transportation. Grazzini-Rucki also stated that she did not have food
“to maintain the energy to put one foot in front of the other” and that she suffered from
injuries impairing her ability to work. The CSM did not ignore Grazzini-Rucki’s assertions;
the CSM found that, given Grazzini-Rucki’s criminal history, Grazzini-Rucki could not
earn the same level of income as she had prior to the felony convictions. However, finding
“no reported job search efforts” in between and after Grazzini-Rucki’s incarcerations and
“no evidence that [she] is mentally or physically unable to work full time,” the CSM did
not accept Grazzini-Rucki’s statements that she could not obtain any kind of employment.
Grazzini-Rucki does not argue that, contrary to the CSM’s finding, her statements are
efforts were unfruitful, or that her predicament prevented her from even trying to search
for a job, relies solely on her own statements. Therefore, the issue becomes a matter of
which are exclusively the province of the factfinder.” Gada v. Dedefo, 684 N.W.2d 512,
514 (Minn. App. 2004). The CSM’s finding that Grazzini-Rucki is voluntarily unemployed
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2. Calculation of potential income
Grazzini-Rucki also argues that, to the extent that the CSM could impute income to
her, the amount was erroneously calculated. Minn. Stat. § 518A.32, subd. 2 (2018)
provides:
The CSM found that Grazzini-Rucki could work 40 hours a week at Florida’s minimum
wage.
Grazzini-Rucki argues that the CSM should have determined her potential income
based on working 30 hours a week, implying that the CSM could use minimum wage in
the calculation of potential income only under subdivision 2(3) of section 518A.32. But
she does not explain why Minn. Stat. § 518A.32, subd. 2, must be construed that way. An
assignment of error in a brief based on “mere assertion” and not supported by argument or
City of Anoka, 890 N.W.2d 437, 451 (Minn. App. 2017), review denied (Minn. Apr. 26,
2017). Nothing in the plain language of Minn. Stat. § 518A.32 (2018) prohibits the court
from determining, based on a parent’s “employment potential, recent work history, and
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occupational qualifications,” that the parent has the capacity to earn minimum wage
working 40 hours a week. Minn. Stat. § 518A.32, subd. 2(1). Thus, the CSM did not
commit an obvious error by finding that Grazzini-Rucki’s potential earnings level was full-
3. Living expenses
Third, Grazzini-Rucki argues that the CSM abused her discretion by finding that her
living expenses were paid by others. The CSM stated that Grazzini-Rucki’s “monthly
living expenses are unknown,” but the CSM did not find that they were paid by others. It
is Rucki whose living expenses the CSM found were paid by others. Grazzini-Rucki does
not argue that she provided the CSM any information on her living expenses or that some
hypothetical amount should have been imputed to her. On this record, the CSM did not
abuse her discretion in making her findings about Grazzini-Rucki’s living expenses. See
Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. App. 2003) (“[A] party cannot
complain about a district court’s failure to rule in her favor when one of the reasons it did
not do so is because that party failed to provide the district court with the evidence that
would allow the district court to fully address the question.”), review denied (Minn.
In sum, Grazzini-Rucki fails to demonstrate that the CSM abused her discretion in
Grazzini-Rucki argues that the CSM sent a copy of the July order, which laid out
the information to be produced by the parties, to the wrong address and that she did not
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receive the July order before the August hearing. She goes on to argue that, instead of
proceeding with the hearing, the CSM should have granted a continuance to allow her to
adequately prepare. However, at the August hearing, the CSM stated that the July order
had been sent to the address that Grazzini-Rucki identified as her mailing address at the
July hearing. Nothing in the record suggests that the CSM sent the July order to the wrong
address.
Moreover, even if the July order was sent to the wrong address for Grazzini-Rucki,
it is not clear how she was prejudiced by the mistake. The July order largely reiterated the
CSM’s instructions to Grazzini-Rucki at the July hearing. The order called for nothing out
of ordinary—it was a list of things that Grazzini-Rucki needed to provide to support her
motion. It would be unreasonable to conclude that Grazzini-Rucki did not know how to
corroborate the claims she was making because she did not have the July order in front of
Grazzini-Rucki argues that the CSM should have held Rucki in contempt for his
refusal to provide current financial information. “The contempt power gives the trial court
inherently broad discretion to hold an individual in contempt but only where the contemnor
has acted contumaciously, in bad faith, and out of disrespect for the judicial process.”
Newstrand v. Arend, 869 N.W.2d 681, 692 (Minn. App. 2015) (quotation omitted), review
denied (Minn. Dec. 15, 2015). “The supreme court has characterized contempt as an
extreme remedy, and this court has instructed that civil contempt powers must be exercised
with caution.” Id. (quotations omitted). Here, nothing in the record suggests that Rucki
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acted “contumaciously, in bad faith, and out of disrespect for the judicial process.” Id. He
clearly represented to the CSM that he was not going to submit his current financial
information. He then faced the adverse inference that his income was double what it had
been in 2016. Assuming that child-support magistrates have the contempt power, it was
D. Jurisdiction
Grazzini-Rucki argues that the adverse inference of income drawn against Rucki
deprived the CSM of jurisdiction to preside over this case. In general, child-support
magistrates can only hear IV-D cases. See Minn. R. Gen. Prac. 353.01.
Minn. Stat. § 518A.26, subd. 10 (2018). Here, the CSM found that Rucki had “assigned to
the state rights to child support because of the receipt of public assistance” and exercised
jurisdiction under the first prong of the definition of a IV-D case. Id. The CSM’s finding
receives Medical Assistance for himself and the parties’ [two] joint children.”
But Grazzini-Rucki argues that the CSM did not have jurisdiction to hear the case
as a IV-D case because the CSM imputed to Rucki $10,000 in gross monthly income and
he would be ineligible for public assistance were he actually earning that amount. Her
argument fails. Even if actual gross monthly income in the amount of $10,000 would make
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Rucki ineligible for public assistance, Grazzini-Rucki has not shown that imputation of
that income would have the same effect. “[O]n appeal, error is never presumed. It must be
made to appear affirmatively before there can be reversal . . . [and] the burden of showing
error rests upon the one who relies upon it.” Waters v. Fiebelkorn, 13 N.W.2d 461, 464-65
(Minn. 1944). Inadequately briefed issues are not properly before an appellate court.
Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982). The relationship, if any, between
eligibility for public assistance and the imputation of income for purposes of IV-D
jurisdiction is not adequately briefed, and Grazzini-Rucki has not shown that the CSM
Lastly, Grazzini-Rucki argues that the CSM failed to consider some child-support
credits and arrearages purportedly owed to her. Grazzini-Rucki asserts that, because the
August order reduced her monthly obligation from $975 to $215, she is “owed a credit of
$760 per month.” But, at the time of the August order, it was Grazzini-Rucki’s future
obligation that was being reduced to $215. The reduction itself did not result in an
overpayment, and Grazzini-Rucki does not cite any other evidence of overpayment. Cf.
can be credited against past and future support obligations). The credits that Grazzini-Rucki
[her] from the time prior to September 7, 2012,” were suddenly deemed paid in full,
“without [her] receiving a dime of that money.” Specifically, she argues that Rucki
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Rucki’s support obligation of $13,673 per month for the months of May to September
2011. But, in an order dated September 21, 2011, that support award was subsequently
vacated due to mistake, discovery of new evidence, and fraud by Grazzini-Rucki. When
the $13,673 support payments are removed from the equation, Rucki does not owe any
Affirmed.
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